Background

Ad description

Three websites, an app and a YouTube channel for Kinder seen on 4 January 2018:

a. The home page of the website www.kinder.co.uk featured a rolling banner which included images of children and adults, and a small image of a Kinder Chocolate bar. At the bottom of the page, under the heading “Our Products”, website visitors could scroll through images of different Kinder products which linked through to individual product pages. A “PRODUCTS” web page had a similar feature.

The website required visitors to enter their age on their first visit. Text stated “Dear Parent, We created this site for you and your family to obtain more information about Kinder. To view this site you must be over 12 years old, or have the permission of a parent”. Three boxes underneath allowed visitors to enter the day, month and year of birth, before clicking on a button labelled “GO” to proceed into the website.

Product pages included images of the products and images of families. The Kinder Surprise and Kinder Chocolate Bar pages featured videos labelled “Watch the TV advert”. The Kinder Surprise video featured the chocolate and ‘Hello Kitty’ and ‘Hot Wheels’ Kinder Surprise toys. The Kinder Chocolate Bar video featured a cartoon animation of a boy and his mother, with the boy eating the chocolate bar.

b. The “Home” page of the website www.kindernauts.co.uk featured branding which incorporated the Kinder logo, the Kinder Chocolate logo at the top, and featured a bright blue background and cartoon images of a sun, clouds and a rainbow. Text stated “Enjoy fun activities, collect badges and win prizes”. A box featured colourful images of badges and the Kinder Chocolate logo, with text that stated “WIN iron-on-badges in the post GO!”. Clicking on “GO!” took website visitors further down the page to a section which explained how users could win badges through engaging with the website. A box titled “Get started!” linked visitors to the “Activities” page of the website.

Two smaller boxes at the top of the home page featured colourful imagery and a picture of a boy and girl playing in the snow, and linked to other pages on the website. Underneath, a Kinder Chocolate branded video featured a video titled “Life through the eyes of a Kindernaut” which featured children playing outdoors, and ended with on-screen text that stated “Join Kindernauts and start the adventure today”.

The “Activities” web page featured an interactive cartoon map through which users could access themed activities. Activities, for example, made available in September under the heading “MINI BEASTS” included “Become a bug detective”, “Create a butterfly feeder” and “Paper plate fun”. After completing an activity, users were awarded a badge that was visible on the “My Gallery” page. The website also included a “Design your Drinks Bottle!” competition.

Most of the activities were inaccessible unless users signed into the website. When clicking on a link a box appeared requiring an email address and password to sign in. Clicking on text that stated “Not signed up yet, sign up now!” brought up a box with text that stated “Grab a grown up to get started” and a tick box alongside the text “I confirm I am aged 18 years or older, and accept the Kindernauts Terms and Conditions and Privacy Policy”. Users were required to provide their name, email address and select a password, and could add the names and dates of birth of children. Text stated “Children must be between the ages of 3 - 12 years old to sign up”.

c. The website www.magic.kinder/en/all featured branding which incorporated the Kinder logo, and web pages with games, videos and video stories that were labelled as suitable for children of three years of age and older. A number of videos, featuring Magic Kinder branding and accompanied by text that stated “The secret life of surprises What happens to the surprises when they are alone at home? They have fun to the rhythm of the music. Live with your little one a magical moment in the company of Kinder surprises”, featured short animations of Kinder Surprise toys ending with the text “Imagination is the real surprise”. The website also featured a range of Care Bears videos.

d. The Magic Kinder app featured branding which incorporated the Kinder logo and a range of activities for young children, including interactive and non-interactive stories, colouring in, educational games, quizzes and videos. All of the content was available as soon as the app was downloaded. A section called the “Surprisery” enabled users to collect virtual Kinder Surprise toys (up to 308 were available) and win points by playing games. A new Kinder Surprise toy was available every day; users were prompted to “Get your Daily Surprise!”. It was also possible to obtain a Kinder Surprise toy by scanning a QR code that came inside Kinder Surprise products; each QR code could only be used once. The videos included similar “Secret Life of Surprises” and Care Bears videos as those that appeared on the Magic Kinder website.

On first downloading the app a teddy bear icon in the top left appeared, with text stating “Welcome” and an animated cartoon hand indicating to the user to click on it. Doing so brought up a box which allowed the user to choose an image to represent themselves, and to choose their gender and age from three ranges: four to five, six to eight, and nine to twelve. After choosing an image, gender and age a box appeared in which text stated “For Grown-ups Insert to proceed”, followed by three numbers spelt out (e.g. “four one three”), next to a keyboard featuring numerals. Once the spelt-out numbers had been inputted through the numerical keyboard, users were returned to the home page and the teddy bear icon was replaced with the chosen image.

Clicking on a lock icon in the bottom right, next to text which stated “Grown-ups” required users to enter three numbers, as referenced above. The first time this section was entered users were required to “log in with your account to access exclusive content” by providing an email address and password registered with Magic Kinder. Users who were not already registered were required to provide a “Parent’s email”, “Parent’s D.O.B” and password, and were required to agree to terms of use and a privacy policy. Users could then add the name and birth date of children and select images for them. Once signed-up, users were able to limit the amount of time per day that the app could be used for. An “i” icon brought up information about the app.

e. The Magic Kinder YouTube channel featured a range of videos including “Secret Life of Surprises” short animations similar to those that appeared on the Magic Kinder website.

Issue

The Children’s Food Campaign (Sustain) challenged whether:

1. ads (a), (b), (c), (d) and (e) were ads for products that were high in fat, salt or sugar (HFSS products) that were directed at children through the media or context in which they appeared;

2. ad (b) was an ad for HFSS products which was targeted through its content directly at pre-school or primary school children and included a promotional offer; and

3. ads (a), (c) and (d) were ads for HFSS products which were targeted through their content directly at pre-school or primary school children and included licensed characters popular with children.

Response

1., 2. & 3. Ferrero UK Ltd said it was their policy to direct all advertising and marketing communications related to Kinder to adults.

They said that ad (a) (kinder.co.uk) was a corporate website and acknowledged that it included, advertised and made explicit references to the Kinder range of food products, which were products that were designed to be consumed by children. However, the content was clearly directed at parents, as was the website’s tone and design. They said the content was primarily informational, including nutritional information and an explanation of the history and philosophy behind the products: the home page referenced their values, mission, and “the Kinder story”. They highlighted that the website featured an age-gate (which, since it was seen by the complainant, had been changed so that it required visitors to confirm they were 16 or over rather than 12 or over), although they did not believe that it was required given the nature of the content and its audience. They had nonetheless taken that step because they took their responsibilities seriously and the age-gate was intended to provide additional reassurance to parents. Given that the website was not intended to be accessed by children under 12 they rejected any suggestion that the content of the website targeted, or was otherwise intended, to appeal to children.

With regard to ad (b) (kindernauts.co.uk), Ferrero said the website was intended to be interacted with by parents and children together, engaging in educational and active outdoor play throughout the year, through seasonal and monthly challenges. The content did not feature any advertising of food products or brands, or any images or references to any food products. They acknowledged that the home page of the website contained two visible references to “Kinder Chocolate” but the web page was designed and directed to parents and the reference was to the food products that had featured the campaign on-pack. However, on further review and in the interests of providing reassurance to parents they had removed those references from the website.

Ferrero considered that the Magic Kinder materials (ads (c), (d) and (e)) were not marketing communications or ads in themselves. They were educational/entertainment services provided to parents with the Magic Kinder banner as an indication of the responsible and trustworthy nature of the content. In the absence of any references to specific food products they considered the simple presence of the term “Magic Kinder” was not associated with any specific or identifiable HFSS food product. It was a standalone brand, and not a promotional programme. The content did not feature any materials that could reasonably be deemed to be food product advertising. They also said that the brand ‘Kinder’ was not strongly associated with any specific food product. It was also used to promote significant other non-food products, services and activities, in particular toys (they were one of the largest toy manufacturers in the world). The Kinder brand was therefore synonymous with an identity other than the provision of HFSS products. The mere use of the term Kinder and/or the Kinder logo in respect to the Magic Kinder product, which had been specifically designed to exclude any reference or marketing of any food products, could not amount to any form of HFSS food advertising in itself.

They said that for a communication to be considered a marketing communication it must be directly connected with the supply or transfer of goods. Ads (c) and (d) (the Magic Kinder website and app) were specifically designed to ensure they did not feature any marketing communications, whether ads or promotions, for any Kinder food products. The Magic Kinder product was developed with expert input as an educational platform to build children’s skill development in a safe digital environment. The product was marketed to parents as a fun educational product they could enjoy with their children, with a full description of the content available prior to download. They said that insofar as the Magic Kinder app and website might be understood as communications in their own right, they were communications about an educational product.

Ferrero followed their own internal criteria for the content of the app and website, which were that food products and brands (including logos and packaging) would not be advertised, shown or referred to in the content, including in-app purchases. They used parental age-gates, provided ‘parent area’ control and the ability for parents to supervise content and limit usage by children, and all content was based on a 70/30% educational/entertainment principle. They highlighted that the app could only be downloaded from an app store, which required an account. They said that in order to open an app store account the account holder must have a credit card, for which they must be aged 18 years or over, and that, combined with the age gate in the app itself, meant that the app was directed not at children but at their parents. Regardless of its content, because it was downloaded by parents it could not be said to be targeting children.

They acknowledged that the Magic Kinder website did not feature an age gate at the time it was seen by the complainant, but they did not accept that an age gate was necessary. However, they had now introduced one to ensure that only over-16s accessed the website. They had also revised the website and removed all content referenced above at ad (c); instead the website now pointed parents to the app store to obtain access to the content via the app.

They said that even if the ASA concluded that the Magic Kinder app was an ad that fell within the remit of the Code, it could be classed only as a brand ad, not an HFSS product ad. The use of representations of Kinder Surprise toys did not amount to advertising of an HFSS product given that there were no references to Kinder Surprise or images of that food product or the associated branding or packaging (including the capsule). They said that the Kinder Surprise was a unique composite product consisting of the chocolate egg but also the toy, which was supported by an ‘experiential’ element; the physical toys were not ads for an HFSS product.

In the context in which the toys were portrayed in the app there was no link between them and the Kinder Surprise food product. They said the app increased the play value of the toys, but did not encourage the purchase of toys because the playability benefits could be unlocked from the app without purchase. The app was promoted within Kinder Surprise, not the other way round. The content was designed with a focus on the Kinder toys as toy products and they therefore did not accept that the appearance of toys within the app amounted to promoting a specific HFSS product. They said the app had been carefully designed to ensure there were no references to the Kinder Surprise product and therefore it was not directly connected with the supply or transfer of that product.

Ferrero said the branding of the app was ‘Magic Kinder’, but the logo was designed so that the word “MAGIC” was far more prominent than the word “Kinder”, as it was written in capitalised, multi-coloured letters, with a ring around the word, and in a much larger font size than “Kinder”. The logo only appeared in the app’s icon on a phone or tablet and on the first screen of the app. When entering into the different activity screens, in most cases there were no further references to the word “Kinder”, and the letter “M” appeared without “Kinder”. They acknowledged that “Kinder” was used in some of the video content, but it was not used in connection with any Kinder product, only with the brand.

The Magic Kinder YouTube channel (ad (e)) featured content that was derived from the Magic Kinder app, with the same internal criteria that there was no advertising of food products or brands, food or images/references to food products within the content. Materials were designed with the same 70/30 criteria and controls. The channel therefore did not advertise HFSS products. However, they had reviewed the age-gate controls on the channel and because they considered it was difficult to implement an age-gate control they had removed all content from the channel as they did not feel that relying on parental supervision alone was enough.

Assessment

1. Upheld in relation to ads (b), (c), (d) and (e)

The CAP Code required that HFSS product ads must not be directed at children through the selection of media or the context in which they appeared, and that no medium should be used to advertise HFSS products if more than 25% of its audience was under the age of 16. CAP Advertising Guidance titled “Identifying brand advertising that has the effect of promoting an HFSS product” laid out that the promotion of HFSS products might occur both directly (where an ad featured an HFSS product), and indirectly through the use of branding that was synonymous with a specific HFSS product; that could be through product-related branding or company or corporate branding more broadly.

Ferrero believed that the Kindernauts website and Magic Kinder website, app and YouTube channel were not marketing communications and therefore did not fall within the remit of the Code. When reviewing each ad, we first considered whether they were within remit, before then considering whether or not the ad featured an HFSS product, and if did not, whether it had the effect of promoting an HFSS product through the use of branding. If the ad did feature an HFSS product, or have the effect of promoting an HFSS product through branding, we then considered whether or not it was directed at children.

Ad (a), the kinder.co.uk website, featured images of Kinder products on its home page as well as pages which featured and described the individual products in the range, all of which were chocolate, and HFSS products. Ad (a) was therefore an HFSS product ad. We then assessed whether it was directed at children. We considered that the overall tone and presentation of the website was directed at adults and that children were unlikely to find it appealing. We concluded that it was not directed at children through the selection of media or the context in which it appeared. We next considered whether its audience was comprised of over 25% under 16s. While Ferrero had not provided us with data relating to the demographic profile of visitors to the website, we considered it was unlikely that over 25% of its visitors were under the age of 16 given that it was primarily a corporate website. We therefore concluded that ad (a) was not directed at children.

At the time ad (b), the ‘Kindernauts’ website, was seen by the complainant, the “Home” page included the Kinder Chocolate logo prominently at the top of the web page, which was also displayed on the first frame, and throughout, the “Life through the eyes of a Kindernaut” video further down the page. The Kinder Chocolate logo was also displayed at the top of the page in a section which referred to the competition to win iron-on badges in the post – an image of an envelope with badges and a letter coming out of it showed the logo at the top of the letter above text stating “Congratulations on winning a …”. We considered that the use of the Kinder Chocolate branding was brand promotion and that the content of the home page was directly connected with the supply of goods, and therefore that it was a marketing communication within the ASA’s remit. Additionally, the “Home”, “Activities”, “My Gallery” and “Other Competitions” pages all referred to either (or both) the competition promotions to win iron-on badges and a drinks bottle. The information about each Activity, shown in a pop-up box which appeared when users clicked on the main Activities map, included a reminder to upload to the gallery a photo of a child enjoying the activity to win an iron-on badge. It was not possible to enter the iron-on badge competition without engaging with the Activities page of the website. We considered that, because promotions in non-broadcast media were within the remit of the Code, the content of those pages on the Kindernauts website were therefore within the remit of the Code.

With regard to whether or not the Kindernauts website was an HFSS product ad, we acknowledged that the content did not include any direct imagery of or references to specific HFSS products. However, the website and all its activities and promotions were branded under the Kindernauts name, which used the same colours and font in its reference to “Kinder” as the Kinder logo used on all Kinder chocolate products. The Kinder range consisted only of HFSS chocolate products, which included Kinder Surprise and Kinder Bars, and all products were consistently marketed and sold with the brand name Kinder included as part of the product name. We considered that even young children were likely to be familiar with the Kinder brand and logo and would specifically associate it with one or more chocolate products. We therefore concluded that through the use of the Kinder branding in the Kindernauts name, the Kindernauts website had the effect of promoting one or more HFSS products. Ad (b) was therefore an HFSS product ad.

We then reviewed whether ad (b) was directed at children. Access to the activities on the website was restricted by an age gate which was intended to ensure that adults would control children’s use of and engagement with the Kindernauts website and activities. Notwithstanding our concerns that age gates were not necessarily a deterrent to children, we considered that while children might engage with the activities and promotions in the presence, or under the supervision, of adults, the content of the Kindernauts website was specifically created as content for children under 16 years of age (particularly those aged between 3 and 12) and would be primarily interacted with by children. We considered that the website was therefore directed at children through the selection of media and, because it was an HFSS product ad, ad (b) therefore breached the Code.

The Magic Kinder website, app and YouTube channel (ads (c), (d) and (e)) all included imagery of, and references to, the toys that came with the Kinder Surprise food product. In all three ads those references were in the form of videos which included cartoons and stop-motion animations of the toys, and ‘finger’ toys being played with, and which were in some cases explicitly referred to as “Surprises”. The app also included the “Surprisery” which allowed users to collect up to 406 toys. The ads all featured a yellow cartoon character with a wide line-drawn mouth that split its head in two, which resembled the capsules inside Kinder Surprises which held the toys. The character featured prominently on the website and in the app. In the context of the references to Kinder Surprise toys we considered users were likely to associate that character with Kinder Surprise toys.

We noted that it was not possible to purchase Kinder Surprise toys separately from Kinder Surprise chocolate and considered they were an added incentive to purchase the product over other chocolate and confectionary products. We considered the toys were therefore intrinsically linked with the chocolate product and even young children would specifically associate the toys with the chocolate. As a result we considered the Magic Kinder website, app and YouTube channel were ads for the toys which came in Kinder Surprises, and therefore that they were also by extension ads for the Kinder Surprise food product. We considered that the use of imagery and references to Kinder Surprise toys, including the term “Surprisery” created and reinforced children’s favourable impression of the Kinder Surprise product and the Kinder brand. We therefore concluded that the Magic Kinder website, app and YouTube channel were directly connected with the supply of goods and therefore that they were marketing communications within the ASA’s remit. Additionally, the app included a QR code icon that was always visible at the top right-hand corner of the home screen as well as in the Surprisery, which allowed users to scan the QR code that came inside a Kinder Surprise to get additional toys for the Surprisery. Each code could only be used once. We considered that functionality directly linked the Surprisery, and the imagery of Surprise toys that was used throughout the app, to the Kinder Surprise food product, which meant that the app was additionally directly connected with the supply of goods in that way. We concluded that ads (c), (d) and (e) were all therefore marketing communications within the remit of the CAP Code.

With regard to whether the three Magic Kinder ads were HFSS product ads, we noted that, as with the Kindernauts name, the reference to “Kinder” in the Magic Kinder used the same colours and font as the Kinder logo used on all Kinder chocolate products and in the product names. In the full Magic Kinder logo the word “Magic” was in uppercase and multi-coloured, and in larger font than the word “Kinder” but we considered the Kinder logo was still a significant and prominent part of the Magic Kinder logo as a whole. We further noted that the icon for the app, as it appeared on a phone or tablet, substituted the word “Magic” for an ‘M’ but retained the Kinder logo, albeit that the full name “Magic Kinder” appeared underneath. We acknowledged that the Magic Kinder logo did not appear on every screen in the app, but it was used in various sections of the app, and in any case it was the overarching name under which the app was provided to consumers. We considered that children who used the app would understand that the content they were engaging with was Magic Kinder content whether or not the logo appeared on the specific screenwith which they were engaging.

For the same reasons given above, we concluded that through the use of the Kinder branding in the Magic Kinder name, the website, app and YouTube channel had the effect of promoting one or more HFSS products. We also considered that because the Magic Kinder app included the QR code functionality which encouraged users to purchase Kinder Surprises the app also had the effect of promoting the Kinder Surprise product specifically in that way. Ads (c), (d) and (e) were therefore all HFSS product ads.

We then reviewed whether ads (c), (d) and (e) were directed at children. As with the Kindernauts website, while we acknowledged that children might engage with the various activities in the presence, or under the supervision, of adults, the content of the website, app and YouTube channel was specifically created as content for children under 16 years of age and would be primarily interacted with by children. While it might be necessary for parents to download the app for their children, we considered that did not negate the fact that the content was specifically designed to be interacted with by children rather than by adults. We considered that the website, app and YouTube channel were therefore directed at children through the selection of media or the context in which they appeared. Because all three ads were HFSS product ads they therefore breached the Code.

On that point, ads (b), (c), (d) and (e) breached CAP Code (Edition 12) rule  15.18 15.18 HFSS product advertisements must not be directed at people under 16 through the selection of media or the context in which they appear.  No medium should be used to advertise HFSS products, if more than 25% of its audience is under 16 years of age.​  (HFSS product ad placement).

On that point, we also investigated ad (a) under CAP Code (Edition 12) rule  15.18 15.18 HFSS product advertisements must not be directed at people under 16 through the selection of media or the context in which they appear.  No medium should be used to advertise HFSS products, if more than 25% of its audience is under 16 years of age.​  (HFSS product ad placement), but did not find it in breach.

2. Upheld

The CAP Code required that HFSS product ads that were targeted through their content directly at pre-school or primary school children must not include a promotional offer.

As referenced in point 1, the Kindernauts website was an HFSS product ad. We considered that the content, both in its presentation and in the types of activities it included, was directly targeted at pre-school and primary school children. The website included two promotional offers – the iron-on badge and drinks bottle competition promotions – and so we therefore concluded that ad (b) also breached the Code in that regard.

On that point, ad (b) breached CAP Code (Edition 12) rule  15.14 15.14 HFSS product advertisements that are targeted through their content directly at pre-school or primary school children must not include a promotional offer.
Additionally, for children under 16:  (HFSS product ad placement).

3. Upheld in relation to ads (c) and (d)

The CAP Code required that HFSS product ads that were targeted through their content directly at pre-school or primary school children must not include licensed characters popular with children.

As referenced in point 1, ads (a), (c) and (d) were HFSS product ads. Ad (a), the kinder.co.uk website, included a video on the Kinder Surprise product page which featured ‘Hello Kitty’ and ‘Hot Wheels’, which were licensed characters, Kinder Surprise toys. The video showed children being giving Kinder Surprises and playing with the toys with adults. The voice-over was directed at adults, asking when they had last “been on the surface of the moon” or in “shark-infested waters”, and concluding “And now treat them to limited edition Hot Wheels toys in every blue egg, and Hello Kitty toys in every pink egg”. The video used subdued colours and its overall tone and presentation was understated, and as a result we concluded that it was not targeted, through its content, at pre-school or primary school children. We also considered, as referenced at point 1, that the overall tone and presentation of the kinder.co.uk website meant that its content was directed at adults rather than at children. We therefore concluded that ad (a) did not breach the Code in that regard.

Ads (c) and (d), the Magic Kinder website and app, included a number of videos which featured licensed characters popular with children, including Care Bears and Oddbods. We considered the individual videos, which appeared to be extracts from TV programming for children, as well as the Magic Kinder website and app as whole, which through their various activities were specifically intended to be used by young children, were targeted at pre-school and primary school children through their content. We therefore concluded that ads (c) and (d) breached the Code in that regard.

On that point, ads (c) and (d) breached CAP Code (Edition 12) rule  15.15 15.15 Licensed characters and celebrities popular with children must be used with a due sense of responsibility. HFSS product advertisements that are targeted directly at pre-school or primary school children through their content must not include licensed characters or celebrities popular with children. For the avoidance of doubt, that prohibition applies to food or drink advertisements only.

The prohibition does not apply to advertiser-created equity brand characters (puppets, persons or characters), which may be used by advertisers to sell the products they were designed to sell.

Licensed characters and celebrities popular with children may present factual and relevant generic statements about nutrition, safety, education or similar.

 (HFSS product ad placement).

On that point, we also investigated ad (a) under CAP Code (Edition 12) rule  15.15 15.15 Licensed characters and celebrities popular with children must be used with a due sense of responsibility. HFSS product advertisements that are targeted directly at pre-school or primary school children through their content must not include licensed characters or celebrities popular with children. For the avoidance of doubt, that prohibition applies to food or drink advertisements only.

The prohibition does not apply to advertiser-created equity brand characters (puppets, persons or characters), which may be used by advertisers to sell the products they were designed to sell.

Licensed characters and celebrities popular with children may present factual and relevant generic statements about nutrition, safety, education or similar.

 (HFSS product ad placement), but did not find it in breach.

Action

Ads (b), (c), (d) and (e) must not appear again in the form complained about. We told Ferrero UK Ltd to ensure that HFSS product ads were not directed at children through the selection of media or the context in which they appeared. We also told them to ensure that HFSS product ads that were targeted through their content at pre-school and primary school children did not include a promotional offer or licensed characters popular with children.

CAP Code (Edition 12)

15.14     15.15     15.18    

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